Thursday, September 04, 2008

Continuing with our "Would you have appealed?" series of decisions, consider if you will the attempt by Unite Eurotherapy to register the mark 7SECONDS for "hair detangler." The Board affirmed a Section 2(e)(1) refusal to register, finding the mark merely descriptive of the goods. In re Unite Eurotherapy, Inc., Serial No. 78936716 (August 20, 2008) [not precedential].

Examining Attorney Evelyn W. Bradley contended that 7SECONDS is merely descriptive of a "significant aspect of applicant’s product, namely, that it detangles hair in 7 seconds." She submitted website evidence showing hair detanglers and referring to the number of seconds for which the stuff should remain on the user's hair.

Applicant argued, of course, that the mark is at most suggestive of the goods, lamely contending that prospective purchasers "would have no idea what 7SECONDS refers to." It feebly asserted that "the number seven has numerous religious, cultural, mathematical and psychological connotations and, thus, the mark 7SECONDS is subject to multiple connotations; and that, because of the merger of the numeral 7 and the word SECONDS into a single word with no spaces, viewers will not examine the mark for literalness and, accordingly, the mark creates a unique, non-descriptive mark."

Unfortunately for Applicant, however, it submitted its own promotional documents, which included the following description of the product: "Within 7 seconds your tangles will be gone and your hair will start to feel alive again."

The Board had no trouble untangling itself from Applicant's arguments, finding them to be "unconvincing and inaccurate." It observed, once again, that a mark must be considered in the context of the goods, not in the abstract.

"[A]ny potential purchaser of applicant's hair detangler is likely to understand that the term 7SECONDS refers to the amount of time necessary for detangling; as the term is in fact merely descriptive, it is axiomatic that competitors may need to use the phrase; the mere fact that the number '7' may have multiple connotations does not mean that, in the context of this mark for the identified goods, it has any connotation other than denoting the number of seconds it takes to achieve results."

And so, the Board affirmed the refusal, stating that it had "no doubt" about its conclusion.